Solomons v Pallier

Case [2015] NSWCA 266

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Solomons v Pallier [2015] NSWCA 266
Hearing dates:22 July 2015
Decision date: 03 September 2015
Before: Macfarlan JA at [1];
Meagher JA at [10];
Simpson JA at [97]
Decision:

1.   Appeal allowed.
2.   Set aside the judgment for the respondent (as plaintiff) given on 12 November 2014 and entered on 13 November 2014.
3.   Judgment for the respondent (as plaintiff) for $1,474,256, that judgment to take effect on 12 November 2014.
4.   Order that the appellant pay 25% of the respondent’s costs of the appeal.

Catchwords:

TORTS – negligence – contributory negligence – where respondent suffered injuries in motor accident whilst travelling in vehicle driven by intoxicated driver – whether primary judge erred in finding that driver intentionally drove vehicle partly off the roadway thereby causing accident

  TORTS – negligence – contributory negligence – passenger in vehicle driven by intoxicated driver injured – whether relevant risk of harm to passenger was of injury as a result of travelling in vehicle with mildly intoxicated driver – whether reasonable person in passenger’s position would have taken precaution of declining to travel with driver – whether primary judge erred in finding no reduction of damages for contributory negligence – just and equitable reduction where passenger 16 years old, actual or constructive knowledge of extent of driver’s impairment was that it was mild and driver intentionally drove vehicle partly off the roadway, thereby causing accident
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5R, 5S
Evidence Act 1995 (NSW), s 140
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Motor Accidents Compensation Act 1999 (NSW), ss 3, 138
Cases Cited: Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Davis v Swift [2014] NSWCA 458; 69 MVR 375
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
Fox v Percy [2003] HCA 22; 214 CLR 118
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Gordon v Truong; Truong v Gordon [2014] NSWCA 97; 66 MVR 241
Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Mackenzie v Nominal Defendant [2005] NSWCA 180; 43 MVR 315
Morton v Knight [1990] 2 Qd R 419
Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219; 64 MVR 354
Nominal Defendant v Lane [2004] NSWCA 405
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Shaw v Thomas [2010] NSWCA 169
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Williams v Government Insurance Office of New South Wales (1995) 21 MVR 148
Category:Principal judgment
Parties: Trent Leigh Solomons (Appellant)
Charles John Kavanagh Pallier by his tutor the NSW Trustee…

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AGLC
Solomons v Pallier [2015] NSWCA 266
Case
[2015] NSWCA 266
Decision Date

CaseChat Overview and Summary

The appeal in *Solomons v Pallier* concerned a motor vehicle accident in which the respondent, a passenger, suffered injuries while travelling in a vehicle driven by the appellant. The primary dispute revolved around whether the primary judge erred in finding that the driver intentionally drove the vehicle partly off the roadway, causing the accident, and consequently, whether the respondent was contributorily negligent.

The court was required to determine two principal legal issues. Firstly, it had to consider whether the primary judge had erred in finding that the driver intentionally drove the vehicle off the roadway. Secondly, the court had to assess whether the primary judge erred in finding no reduction of damages for contributory negligence, specifically considering the respondent's age (16 years old), their actual or constructive knowledge of the driver's impairment (which was found to be mild), and the driver's intentional act of driving off the roadway.

The Court of Appeal allowed the appeal, setting aside the original judgment. The court found that the primary judge had erred in failing to reduce the respondent's damages for contributory negligence. Applying the principles of negligence and contributory negligence, the court determined that a reasonable person in the respondent's position, despite their age and the driver's mild intoxication, would have taken the precaution of declining to travel with the driver, given the foreseeable risk of harm. The court concluded that a just and equitable reduction of 25% was appropriate. The judgment was varied to reflect this reduction, and the appellant was ordered to pay 25% of the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the judgment for the respondent (as plaintiff) given on 12 November 2014 and entered on 13 November 2014.

3. Judgment for the respondent (as plaintiff) for $1,474,256, that judgment to take effect on 12 November 2014.

4. Order that the appellant pay 25% of the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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